South African courts should not decide whether a South African-born fugitive from justice had received a fair trial in Canada, the Constitutional Court heard on Tuesday.
Peter Hodes, SC, said this while arguing for the state in a case that is considered crucial to whether people sentenced in their absence in other countries will be able to find sanctuary in South Africa.
The case concerns Trevor Robinson who was not extradited to Canada, where he had lived, when the Cape High Court ruled he had not had a fair trial when he was sentenced to three years in jail, in absentia, eight years ago for molesting a 14-year-old girl.
He fled back to the country of his birth after his conviction on the charge.
The state is appealing against the ruling.
Hodes said the decision about the fairness of the Canadian trial should be dealt with by the minister of justice.
He also brought up the issue of the extradition agreement between South Africa and Canada at the time of the extradition process.
”The extradition treaty was applicable and not the state president’s consent,” Hodes said.
President Thabo Mbeki had consented to Robinson’s extradition on the recommendation of former justice minister Penuell Maduna after a magistrate in Wynberg, Cape Town, had found that Robinson was ”liable to be extradited”.
Robinson was arrested but then set free after Judge Wilfred Thring in the Cape High Court ruled on appeal that because he had been sentenced in absentia, his constitutional rights to a fair trial had been severely curbed.
However, the state contended that it was not unfair that the Canadian court sentenced Robinson in his absence. Hodes said Robinson had waived his right to a fair trial by fleeing from Canada after he was convicted, but before sentencing. — Sapa